In the petition for a rehearing in this case the point is urged for the first time that a certain instruction requested by the people and given by the trial court erroneously stated the rule relating to the measure of proof required for the establishment of an alibi, which was defendant's defense. No mention was made of this point in the original briefs presented in support of the appeal and, therefore, the point was not discussed in the opinion affirming the judgment. Ordinarily we pay no attention to points presented for the first time upon a petition for a rehearing, but in view of the fact that the judgment affirmed in this case involves the death penalty, we feel constrained to notice the point and say that the instruction complained of contained an erroneous statement of the law. [8] The instruction should not have been requested by the district attorney and should not have been given by the trial court. If that instruction had been permitted to stand alone it may well have constituted prejudicial error. The record, however, shows that immediately following the instruction complained of the trial court, at the request of the counsel for the defendant, gave two separate, particular, and pertinent instructions which clearly and correctly stated and reiterated the law relative to the degree of proof required to establish the defense of alibi and when the instruction complained of is read, as it must be, in conjunction with the two instructions immediately following it, it cannot be said that the jury was not fully informed of the law which covered and controlled the defendant's defense of an alibi. It was doubtless for that reason that the instruction now complained of in the petition for a rehearing was not complained of and commented on in the briefs filed upon the original hearing.
The rehearing is denied. *Page 451